Even the most innocuous use of “non-consensual force” by parents to correct a young child’s behaviour could lead to an assault conviction if spanking were to become a crime in Canada, Justice Department lawyers told a Senate committee last week.

At issue, as the Montreal Gazette¹ reported, is Bill S-207², tabled by Quebec Liberal Senator Céline Hervieux-Payette³. It seeks to repeal Section 43⁴ of the Criminal Code, which allows parents and teachers the right to use “reasonable force” to discipline a child without fear of being charged with assault.

The bill follows through on a report⁵ on children’s rights released in April by the Senate Committee on Human Rights⁶ that had recommended repealing Section 43.

Anti-spanking advocates have been claiming⁷ for years that even the mildest spanking is a form of child abuse and therefore must be abolished. As Ontario Liberal Senator and committee member Jim Munson⁸ reportedly asserted, when it comes to parenting, “There’s no such thing as reasonable force.”

But Justice Department officials Gillian Blackell and Elissa Lieff, in testimony before the committee, warned that the removal of Section 43 would technically criminalize virtually anything a parent did to try to make a defiant child act against his or her will.

“There would no longer be a statutory defence to criminal charges where the force used is minor corrective force of a transitory or trifling nature,” Blackell told the senators, according to the Gazette. “Parents who physically put a reluctant child in a car seat or remove a child to their bedroom for a time-out are applying nonconsensual force and could be convicted of simple assault.”

In a separate presentation⁹, Dave Quist, executive director of the Institute of Marriage and Family Canada, urged the senators not to confuse child abuse with child discipline¹⁰.

“Children need to learn morals and ethics, right from wrong, acceptable and unacceptable behaviour,” he stated. “. . . Normative spanking is not abuse and is one of many teaching and disciplinary tools that many parents need to have at their disposal.”

In 2004, the Supreme Court of Canada rejected¹¹ an earlier attempt to repeal Section 43 on grounds that it violated the Charter of Rights and Freedoms. But it also ruled that parents cannot spank a child younger than two and older than 12 and that the force applied must be “minor and corrective.”

Given that spanking is clearly not a crime¹² in the eyes of the Supreme Court, the National Post¹³ suggested in a lengthy editorial that “The apparent goal [of Bill S-207] is not to create a world where parents and teachers are subject to routine prosecution the moment they physically touch a child – merely one where they face the continual, arbitrary threat of such prosecution.